When Back in June we all found out that federal prosecutors did, indeed, secure a gag order prohibiting Reason Magazine from commenting on a federal grand jury subpoena seeking to unmask mouthy anonymous commenters. At the time, nobody had a copy of the government's application for a gag order; we only had the formulaic, boilerplate order signed by Magistrate Judge Frank Maas. I made a prediction about the government's application:
Here's my prediction: when it comes to light, it will contain no more substantive information than appears on the face of the subpoena. That is, it will merely say "these people said these things, we want their information, therefore, give us a gag order."
Guess what? It had less than that.
Paul Alan Levy at Public Citizen — a leading expert on anonymity issues — got a copy of the government's application for the gag order on Reason. How? He asked for it professionally and politely. Tricky bastard. Levy talked to Assistant United States Attorney Niketh Velamoor and requested the application; Velamoor disclosed it. Levy reports that Velamoor was very professional in their interactions. Why did he disclose it? Probably because fighting a motion to disclose it would draw more attention to the whole story.
The first three paragraphs of the application simply identify Velamoor as the attorney seeking it and set forth the statute allowing gag orders in some cases. The fourth paragraph contains the entire justification for gagging Reason Magazine for 180 days from reporting on a grand jury subpoena aimed directly at the free speech of its readers:
4. In this case, such an order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor otherwise known to all targets of the investigation, the account holder is suspected of being involved in or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account owner or to any other person may alert subjects or targets of the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or avoid prosecution, or tamper with evidence, including electronically stored information that is easily
tampered with. Given the amount of time a criminal investigation commonly lasts and the particular circunlstances presented here, the Government respectfully submits that 180 days is an appropriate delay of notice period for the Court to order.
That's it — sheer boilerplate. There are no specific facts indicating the nature of the investigation, the nature of the conduct investigated, the nature of the targets of the investigation, the circumstances requiring secrecy, or any particular facts explaining why the statutory factors apply to this case. This isn't judicial review; it's not any type of check on government power. This is a federal prosecutor saying "gag these people because I want you to, judge — you can trust me, I'm a prosecutor" and the judge saying "of course. For how long?"
As Levy points out, if it's this easy to get a gag order, prosecutors can get one automatically in any case involving electronic data without any proof:
Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.
The U.S. Attorney's Office might has well have a macro that generates gag orders; it's not clear what role Magistrate Frank Maas plays that couldn't be fulfilled equally well by an autopen.
That's your justice system, and mine: a consequence of our culture of servility towards to police and prosecutors.
Meanwhile, ReasonTV has posted its interview with me about the whole subpoena incident, which prompted an email from my father telling me to hold still.
Also, I've been delinquent in not thanking New York criminal defense attorney and prolific blogger Scott Greenfield. In addition to covering the story, Scott generously provided sensible advice during the process of investigating and writing about the subpoena.
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